FAP Rule forwarded to OMB — and 4/22/15 Hearing Info

The below info is thanks to Patricia Ferguson.
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The Administration forwarded the Final Rule regarding the Federal Acknowledgement Process to the Office of Management and Budget for their review. The Natural Resources Committee has requested that the final rule be delayed: http://naturalresources.house.gov/news/documentsingle.aspx?DocumentID=398228. Chairman Bishop asked that the Final Rule be pulled back after it was sent to OMB. At the hearing on April 22, 2015, the Assistant Secretary of Indian Affairs Kevin Washburn indicated that he will not pull the rule back.

According to the OMB website, the period for OIRA Office of Information and Regulatory Affairs (OIRA) review is limited by the Executive Order to 90 days. There is no minimum period for review. The review period may be extended by the head of the rulemaking agency, and the OMB Director may extend the review period on a one-time basis for no more than 30 days. The average review time for the 712 rules submitted to OMB during 2003 was 53 days.

A recent news article and information on the 4/22/15 hearing on the FAP are below.

The United South and Eastern Tribes, seven partner organizations and a federally recognized sovereign Indian nation have asked the House Natural Resources Subcommittee on Indian, Insular and Alaska Native Affairs to renounce the testimony presented at a recent oversight hearing by one of its invited panelists. The panelist, attorney Donald C. Mitchell, supported terminating the federal recognition of tribes he alleged were unlawfully acknowledged by the Interior Department.

“[Mitchell’s claim that] the Secretary of Interior has never been delegated authority to recognize Indian tribes—and [his] strong inference that such tribes should be stripped of federal recognition as their recognized status lack any legal merit,” the group wrote. “We refute that theory. We ask that the Subcommittee review this material [we have submitted] and disavow Mr. Mitchell’s testimony.” ICTMN has received a copy of the letter.

In his comments and 14-page written testimony, Mitchell, an attorney from Alaska, claimed that Congress never delegated its “plenary power” over Indians to the Interior Department or authorized the Assistant Secretary – Indian Affairs “to create new tribes” – an expression he used repeatedly that both misrepresents and disparages the formal procedure by which existingtribes are acknowledged. Because Interior acted without authority, Mitchell argued, the federal recognition regulations that BIA officials promulgated in 1978, the 1994 amendments to those regulations, and the current proposed revisions, “if they are published in a final rule. . . were and are ultra vires” – meaning they are actions taken outside of the powers or authority granted to them by law. Since 1978, the BIA has federally recognized 17 tribes. Mitchell urged Congress “to reassume control of the tribal recognition process.”

In his written testimony, Mitchell cited without censure Andrew Jackson’s sweeping policy of ethnic cleansing that was part of the 1830 Indian Removal Act, the Allotment Act, which destroyed reservations, and the termination policy, which aimed at erasing Indian identity through assimilation into mainstream American society. He also advocated for the use of “blood quantum” – a Euro-American strategy of genocide – to determine Indian identity.

The material submitted by the tribal organizations cited case after case in which court rulings and Congress itself have explicitly, implicitly and repeatedly acknowledged the Interior secretary’s authority to extend federal recognition to Indian tribes and affirmed congressional delegation of that authority.

It wasn’t only Mitchell’s testimony that was troubling, USET President Brian Patterson, a citizen of the Oneida Indian Nation, told ICTMN. There was the Hearing Memo, which echoes Mitchell’s claims that the Interior Department has somehow usurped Congress’s power to regulate Indian affairs. And there was a “negative” tone to the meeting itself, Patterson said. That negative tone began with the hearing title – “The Obama Administration’s Part 83 Revisions and How They May Allow the Interior Department to Create Tribes, not Recognize Them.”

Paterson noted that the subcommittee has scheduled an oversight hearing with another “troubling” title — “Inadequate Standards for Trust Land Acquisition in the Indian Reorganization Act of 1934” – on Thursday, May 14. “We’re troubled about that hearing as expressed in the title. We’re concerned about Mr. Mitchell seeing the light of day with his anti-Indian rhetoric that is baseless and fictitious. Our USET tribal nation family will not stand on the sidelines and passively watch as others attempt to dismantle and erode our inherent sovereign rights and authorities,” he said.

Perhaps the most disturbing thing about the hearing was the committee members’ lack of support for the tribes, Patterson said. “Not one of them stood up for the tribes or spoke out against Mitchell’s specious claims,” he said. “Congress has a responsibility to promote tribal self-determination. It needs to respect and protect our inherent sovereign authorities and rights.”

The tone of the meeting became particularly troublesome during an exchange between Natural Resource Committee Chairman Rob Bishop (R-UT) and Assistant Secretary – Indian Affairs Kevin Washburn. Washburn attended the hearing to provide an overview of the Interior Department’s efforts to improve the federal acknowledgment process. It’s an effort that’s been discussed for years, but not acted upon until Washburn unveiled a draft “discussion” proposal of revised regulations in the spring of 2013. The draft had been produced during Washburn’s first year in office.

Bishop grilled Washburn about whether he would “commit to pull back” the proposed revised regulations until the committee could conduct “the appropriate oversight and can address the concerns held by this committee and others.” The revised regulations are currently lodged with the Office of Management and Budget for review – the last step before a “final rule” is published in the Federal Register.

“Chairman, we’ve been criticized for moving too slow and you’re asking us to stop,” Washburn said. ‘We’ve been working on this for two years, so respectfully, I won’t commit to doing that.”

Bishop leaned forward, hunched over his crossed arms on the desk in front of him, and glared at Washburn. “One way or another we’re gonna push you until we do it the right way and whether it’s quick or not I don’t care,” he said. The exchange begins at 52:24 in the archived video of the hearing.

The hearing was set up as a forum to showcase opponents of the proposed federal recognition revisions. Panelists were by invitation only. The three invited tribal leaders – Fawn Sharp, president of the Quinault Indian Nation, Glen Gobin, vice chairman of the Tulalip Tribes, and Robert Martin, chairman of the Morongo Band of Mission Indians – all expressed concerns that their nations may come into conflicts over resources if more tribes were to be federally recognized and fear that the proposed revisions would make it easier for other, perhaps “illegitimate,” tribes to gain recognition.

A key witness was Sen. Richard Blumenthal (D-CT), who has been at the center of anti-Indian sovereignty activity for more than two decades. Blumenthal threatened to sue the Interior Department if the final rule does not meet his approval. Subcommittee Chairman Don Young (R-AK) invited Reps. Elizabeth Esty and Joe Courtney, two Democrats from Connecticut’s congressional delegation who have been coached by Blumenthal on Indian issues, to sit at the subcommittee’s table.

Some observers said they were dismayed by what they saw at the hearing. “This new committee tends to be far more hostile then we have seen in recent years. It is rather disconcerting. It looks like we are going into another era of termination, albeit ‘cloaked’ under feigned ‘good intentions,” said Rev. John Norwood, a councilman of the Nanticoke Lenni-Lenape Tribe of New Jersey and co-chair of the National Congress of American Indians Federal Recognition Task Force.

Norwood warned tribes against falling victim to the government’s “divide and conquer” strategy. “Tribes thinking they are protecting their interests by allying themselves with Congress or federal agencies against other tribes have always found that when the smoke clears, they too have been the target of a government with a history that always tends to bend toward injustice against indigenous dignity and sovereignty,” he said. “Sadly, too many have not learned the lessons of history.”